Balkinization: Representative Harman on the Specter Bill

Representative Harman on the Specter Bill

Guest Blogger

Congresswoman Jane Harman

Senator Arlen Specter is a careful lawyer who has been one of the few Republicans willing to take on the President when he sees an executive branch power-grab.

That's why I was so disappointed to read his legislation on the NSA program. Not only does it fail to force the President to comply with the law, but it actually authorizes the President to make an end-run around FISA and gives him a blank check to conduct warrantless spying on Americans.

The Bush Administration has refused to brief Senator Specter on the details of the NSA program. As a result, he's legislating in the dark.

Had he been briefed -- as I have been -- he would understand that the surveillance the President wants to conduct can be done completely under the current FISA system. If the President needs more resources -- staff, computers, etc. -- to process warrants more efficiently, Congress should provide those resources.

The Specter bill contains two provisions which, in effect, repeal FISA outright.

The first provision says that the FISA Court can issue an order authorizing the President to conduct a surveillance program targeting communications with terror suspects. This provision would repeal the requirement under FISA that the government get individualized warrants each time the government wants to listen to Americans' conversations or read their emails.

The Fourth Amendment states: "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The key words here are "particularly describing." The hallmark of the Fourth Amendment is particularized suspicion -- the notion that the government can't just go on a fishing expedition. There must be some clear reason to believe that the target of the search is doing something to warrant the surveillance. A general search warrant is unconstitutional. See Stanford v. Texas, 379 U.S. 476 (1965).

As if that's not enough, the Specter bill also contains the following startling provision: "Nothing in this Act shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers." This provision endorses the Cheney-Addington vision of Executive Power -- that they have "all the authority they need" under Article II.

There are some positive aspects to the bill. As a conceptual matter, I agree that inviting a Court to review the President's actions is better than no Court review at all.

Also, section 10 of the bill contains some thoughtful revisions to the definition of "electronic surveillance."

But the Supreme Court, in both Hamdan and Hamdi, made clear that the President cannot have a "blank check," even in war-time.

A far better approach is the legislation Rep. John Conyers and I have drafted. The Lawful Intelligence and Surveillance of Terrorists in an Emergency by the NSA ('LISTEN') Act (H.R. 5371) would require the program to comply with FISA and would provide the resources needed to do just that. The bill has 58 co-sponsors and has been endorsed by the American Bar Association, the ACLU, the Center for Democracy Technology (CDT), former Reagan Justice lawyer Bruce Fein, and the Open Society Policy Center.

Next Wednesday, the House Intelligence Committee is holding a public hearing on various legislative proposals on the NSA program. I suspect that as the public absorbs the discussion, Senator Specter's bill will be dismissed as a non-starter.

Posted 2:23 PM by Guest Blogger [link]

Comments:

I think it speaks well for both Rep. Harman and for Balkinization that she has been willing to submit this excellent posting.

I note one additional peculiarity of the bill, contained within her posting. Yes, the Specter bill apparently authorizes programmatic review by "a court," but that in itself is one of the extraordinary features of the legislation. The "a court" is presumably the FISA court. Although every member is an Article III judge confirmed by the Senate, the actual members of the Court are hand-picked by the Chief Justice, with no oversight whatsoever, whether from Congress or even his fellow justices. (University of Pennsylvania law professor Ted Ruger has written an excellent article on this rather extraordinary power of the Chief Justice.) To put it mildly, there is no reason to believe that the late Chief Justice Rehnquist or, now, Chief Justice Roberts looks to strong civil libertarians as potential members (though Ruger found less demonstrable conservative tilt in those appointed than he initially expected). Aside from this peculiarity of the appointment process, though, "a court" seemingly need not even issue a public opinion, nor, even more to the point, is there seemingly any procedure for review by the Supreme Court.

This is a truly terrible bill that moves toward the possibility of secret opinions--conducted under God knows what kind of "adversarial" presentation of argument--without the possibility of review by the Court that in all other cases is at the top of the judicial hierarchy. Why? Does Arlen Specter not trust the members of the Supreme Court to be adequately discrete?

As Marty Lederman has suggested, the Washington Post headline writer who spoke of a "compromise" by the Whtie House literally has not understanding at all of what the bill really includes. The Specter Bill is more accurately described as a face-saving surrender to David Addington, even if he is unhappy that it is not an unconditional surrender. It will be a sad, sad day if other Democrats (not to mention a few classically conservative/libertarian Republicans) do not join Rep. Harmon in opposing this dreadful legislation.

# posted by

Sandy Levinson : 3:56 PM

Sandy: It's better -- or worse -- than that. As far as I can tell, the FISA "review" is neither required nor meaningful. (And that's even putting aside the point I made in my post that the substantive standards for review would be reduced to a point where a child would have trouble failing to meet them.)

It's not required because the AG need not go to the FISA court -- he can if he wants to do so, but need not.

It's not meaningful because it's not clear that anything would happen if the FISA court *denied* approval. The bill doesn't require cessation of the program even if there's such a denial, as best I can tell (although it's certainly possible I missed something).

All of which is to say that it's quite literally setting up advisory opinions, with no legal effect whatsoever. I think.

# posted by

Marty Lederman : 4:07 PM

despite the late hour, I stopped by with the idea of asking if there was any mechanism by which the kind of legal analyses routinely published here - in particular, those re the specter bill - made their way to the influential. question answered!

as long as we're parsing the wording, looking for the worst - is there anything to be read into "with respect to" in the paragraph endorsing the addington/yoo approach to art II powers? having a lay interest in the estab clause, I'm sensitive to how troublesome that particular word has been there and wonder if it was used here specifically for it's vagueness. probably paranoia, but that's what the last 5 1/2 years have bred.

# posted by

Charles T. Wolverton : 1:09 AM

The Signal Intelligence subcommittee chair Heather Wilson has a post on her website summarizing in a few hundred words the bill she intends to introduce July 18, next Tuesday, here.

It is reassuring that the House is encouraging the Senate to look at the far reach Specter's proposed FISA bill in the senate adds. ML, and Sandy have helped clarify some of the misleading headlines in the media, even including some wayward impressions in NYT. Fortunately, ML's writing has sent me back to the opinions in the Hamdan ruling. Clearly congress still has the right to shape these processes. Welcome, Rep. Harman; and appreciation to this site's acomplished designers.

# posted by

JohnLopresti : 2:33 AM

As a wow gold player,I know wow gold is very important for wower. But how to buy wow gold to get our favorite items and finish tasks, That is a question.Here in cheapest wow gold, we are going to show you some easy ways to farm wow gold. Read the following words, you will learn a lot buy world of warcraft gold.

# posted by

Jack : 1:57 AM